By Lynn L. Bergeson and Carla N. Hutton
On April 11, 2023, a bipartisan group of legislators led by Senators Amy Klobuchar (D-MN) and Chuck Grassley (R-IA) sent a letter to the U.S. Environmental Protection Agency (EPA), urging it to strengthen the Renewable Fuel Standard (RFS) by maintaining the blending requirements for 2023; denying all pending Small Refinery Exemptions (SRE); eliminating proposed retroactive cuts to the renewable volume obligations (RVO); and setting RFS volumes at the statutory levels. According to Klobuchar’s April 14, 2023, press release, the letter states that the RFS “creates competition in the marketplace, keeping fuel costs low for consumers while bringing down carbon emissions.” By taking the suggested steps, EPA “can set the RFS on a path that provides stability and growth for the U.S. biofuel sector.” This would guarantee that this “essential program” continues to function as intended by reducing emissions, driving economic growth in rural communities, keeping gas prices low, and “bolstering national security by promoting an essential homegrown energy source.”
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By Lynn L. Bergeson and Carla N. Hutton
In his opening statement, Senator Tom Carper (D-DE) noted that when exploring ways to improve federal policies, he often looks to see what works well at the state level. According to Carper, “states have learned from the federal government’s mistakes when it comes to programs like the Renewable Fuel Standard” (RFS). States such as California and Oregon have implemented, or are considering implementing, technology-neutral low carbon fuel standards. Carper stated that unlike the RFS, “existing state programs often focus more on emissions reduction potential when determining what qualifies as a clean fuel. In addition to reducing the number of questions the states have to ask when determining which fuels qualify for a clean fuels program, this structure allows multiple options for obligated parties to comply.” Carper concluded his opening statement by expressing his hope “that today’s hearing is the first of many conversations on how we can bring together industry, environmental groups, agriculture and other stakeholders to further decarbonize our nation’s transportation fuels, while also supporting job creation across our nation.” By Lynn L. Bergeson and Carla N. Hutton Senate Committee Hearing on Proposed FY 2023 EPA Budget Includes Discussion of TSCA and FIFRA Issues
The Senate Committee on Environment and Public Works held a hearing on April 6, 2022, on the U.S. Environmental Protection Agency’s (EPA) proposed fiscal year (FY) 2023 budget. The only witness was EPA Administrator Michael S. Regan. In his written testimony, Regan states that EPA has significant responsibilities under amendments to the Toxic Substances Control Act (TSCA) to ensure the safety of chemicals in or entering commerce and addressing unreasonable risks to human health or the environment. President Biden’s proposed budget would provide $124 million and 449 full-time equivalents (FTE) to implement TSCA, an increase of more than $60 million. According to Regan, these resources will support EPA-initiated chemical risk evaluations, issue protective regulations in accordance with statutory timelines, and establish a pipeline of priority chemicals for risk evaluation. EPA “also has significant responsibility under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) to screen new pesticides before they reach the market and ensure pesticides already in commerce are safe.” Regan notes that in addition, EPA is responsible for complying with the Endangered Species Act (ESA) and ensuring that federally endangered and threatened species are not harmed when EPA registers pesticides. The FY 2023 budget includes an additional $4.9 million to enable EPA’s pesticide program to integrate ESA requirements in conducting risk assessments and making risk management decisions that protect federally threatened and endangered species from exposure to new active ingredients. After Regan gave his opening statement, the Committee asked questions. Committee Chair Tom Carper (D-DE) stated that President Biden requested $124 million and hiring of about 450 FTEs to implement the Frank R. Lautenberg Chemical Safety for the 21st Century Act (Lautenberg Act). According to Carper, despite the previous Administration’s failure to request funds to support implementation of the Lautenberg Act, EPA professionals have worked hard to meet the aspirations and mandates of the Act. Carper asked Regan to describe the resource challenges that the TSCA program is currently facing and how EPA plans to fulfill its obligations under the Lautenberg Act if Congress appropriates the increase in resources requested by the Biden Administration. Regan stated that the previous Administration missed nine of ten deadlines for chemical risk review evaluations. Meanwhile, the workload for the Biden EPA has doubled, with 20 high-priority risk evaluations to do and ten risk management rules to write, but EPA is still working with the same budget that it had before the Lautenberg Act. As a result, EPA has only about 50 percent of the resources that it thinks it needs to review the safety of new chemicals quickly and in the way that the law requires. The proposed FY 2023 budget reflects what EPA thinks it will actually take to implement the Lautenberg Act in the way that Congress and stakeholders expect and deserve. According to Regan, EPA would put those resources to good use. EPA wants to keep pace with what Congress requested. According to Senator Kevin Cramer (R-ND), the North Dakota Agricultural Commissioner sent a letter to EPA’s Office of Pesticide Programs (OPP) (still waiting for a response) about unused stocks of chlorpyrifos. In August 2021, EPA issued a final rule revoking all tolerances for chlorpyrifos. Cramer stated that under the final rule, farmers and retailers have six months to dispose of it. To date, there has been very little to no guidance on how to dispose of it, and without guidance from EPA, there is worry about improper disposal or illegal use. Cramer asked Regan if he could provide some assurance that EPA is not going to seek to punish growers that currently have product in their possession. Regan responded that in this case, like others, EPA found itself in a situation where, because of inaction over decades, the court put it on a timeline to take action. Regan stated that he can commit that the EPA regional office is working with North Dakota now to think about how to address the situation. Commentary As Regan noted in his testimony before the Committee, the Lautenberg Act includes statutory deadlines that EPA must meet as it evaluates existing chemicals. In addition to these mandates, after reviewing the risk evaluations completed by the previous Administration, the Biden EPA announced June 30, 2021, its plans to review and address certain issues. The Biden EPA is working to complete its revisions to the final risk evaluations and move to the risk management rulemaking stage. Under the previous Administration, EPA, in 2020 and 2021, directed significant energy to developing risk evaluations for the “Next 20” chemicals designated as high priority for risk evaluations through the TSCA prioritization process, completing scoping documents in September 2020. In light of the Biden Administration’s revised approach to risk evaluations, however, those scoping documents will need to be revisited and revised as appropriate, and work is expected to continue through 2022 and probably much of 2023. EPA also now has received four manufacturer-requested risk evaluations, three of which have been granted as of mid-December 2021, and one of which is pending. Without significant resources, the Biden EPA will struggle to meet the ambitious goals of the Lautenberg Act. On January 31, 2022, U.S. Senators Amy Klobuchar (D-MN) and Chuck Grassley (R-IA) and 12 of their colleagues submitted a letter to EPA Administrator, Michael Regan, regarding EPA’s RFS Annual Rules and Proposed RFS Small Refinery Exemption Decision. In the bipartisan letter, Senators Klobuchar and Grassley and their colleagues urge EPA to prioritize the RFS in support of a “homegrown energy future” by:
The letter commends EPA’s efforts to better the RFS program and highlights areas with room for improvement. Of particular concern to the letter signatories is EPA’s proposal to waive retroactively 2.96 billion gallons of renewable fuel from the 2020 RVOs. The letter states that adjusting these biofuel volumes more than two years after they were finalized would set a troubling precedent and impact negatively the entire agriculture and fuel supply chain. Therefore, Klobuchar and her colleagues urge EPA to eliminate the proposed retroactive cuts to the 2020 volumes and require obligated parties to comply with the 2020 standards that were issued in final in 2019. The signatories express similar concerns with the proposal to reset retroactively authority to establish 2021 RVOs and state that EPA cannot meet its ambitious climate goals without providing for growth and certainty in the RFS. Senators Klobuchar and Grassley and their colleagues request that EPA finalize these actions as quickly as possible to restore integrity, stability, and growth to the RFS program and the U.S. biofuel sector. On February 16, 2022, EPW held a hearing to examine EPA’s RFS program. U.S. Senator and EPW Chairman, Tom Carper (D-DE), made the opening statement, highlighting that EPW had not held an oversight hearing on the RFS since 2016. While Senator Carper demonstrated continued support for the RFS program, he also noted that “[f]or example, the amount of advanced renewable fuel used today in this country is far less than the 36 billion gallons that Congress mandated in 2007 be used by 2022. That shortfall is partly due to unforeseen market challenges and partly due to EPA’s delay in approving new fuels to enter the marketplace.” Senator Carper criticized the CAA for prohibiting some advanced biofuels that qualify for state programs from qualifying as renewable fuels under the RFS. He highlighted that volatility in compliance costs for refiners also presents challenges to implementing the RFS. The hearing included further discussions on other management and implementation challenges that EPA is facing and addressed opportunities to encourage increased deployment of more sustainable fuels. By Lynn L. Bergeson and Ligia Duarte Botelho, M.A. On February 22, 2022, U.S. Senator and Chairwoman of the U.S. Senate Committee on Agriculture, Nutrition, and Forestry, Debbie Stabenow (D-MI), and U.S. Senator and Committee member, Amy Klobuchar (D-MN), sent a letter to the U.S. Secretary of Agriculture, Tom Vilsack, requesting improvements to the United States’ biobased economy. Senators Stabenow and Klobuchar’s request focuses particularly on the U.S. Department of Agriculture (USDA) BioPreferred® Program (Program), urging that USDA leverage its long-standing expertise in biobased products to strengthen the Program. Managed by USDA, the Program aims to increase the purchase and use of biobased products, spur economic development, create new jobs, and provide new markets for farm commodities. The Program has two major parts:
According to Senators Stabenow and Klobuchar, federal procurement for BioPreferred® products has failed to increase, despite significant product innovations in recent years. The two U.S. Senators encourage the U.S. Office of Management and Budget (OMB) and USDA to educate procurement officers on the benefits of BioPreferred® products and routinely to measure progress of the Program. They also request that Secretary Vilsack and the U.S. Secretary of Commerce complete swiftly creation of North American Product Classification System (NAPCS) codes, correlating them to North American Industry Classification System (NAICS) codes to capture the multiple industries into which each product is sold. On January 27, 2022, U.S. Senator Shelley Moore Capito (R-WV), Ranking Member of the Senate Environment and Public Works (EPW) Committee, and 14 of her colleagues submitted a letter to the U.S. Environmental Protection Agency (EPA) Administrator, Michael Regan, requesting that EPA reconsider its proposed actions under the Renewable Fuel Standard (RFS) program through the RFS Annual Rules and the Proposed RFS Small Refinery Exemption Decision. Senator Capito and her colleagues request specifically that EPA reassess its proposed denial of all pending small refinery exemption (SRE) petitions under the RFS program, because EPA’s decision breaches congressional intent under the Clean Air Act (CAA). According to the letter, Congress’ intent in amending the CAA to allow for SREs was to alleviate disproportionate economic hardship associated with RFS compliance for small refiners. Therefore, the denial of all pending SRE petitions contravenes Congress’ intent and, according to Senator Capito and her colleagues, will lead to increased litigation and uncertainty under the RFS program. The letter also states that EPA’s “proposal for all-time high Renewable Volume Obligations (RVO) for 2022 does not reflect market realities and is likely to further raise costs for refiners – especially small and independent refiners – and therefore American consumers and the economy.” Senator Capito and her colleagues urge EPA to reconsider these actions to:
On September 15, 2021, the Senate Committee on Environment and Public Works held a hearing on several U.S. Environmental Protection Agency (EPA) nominees, including Amanda Howe, nominated for Assistant Administrator for Mission Support, and David Uhlmann, nominated for Assistant Administrator for Enforcement and Compliance Assurance. Amanda Howe has a long history of public service, including such roles as the Chief Operating Officer for the now-Vice President, Kamala Harris, for the People Presidential Campaign, Acting Chief of Staff for New York Mayor Bill de Blasio, Assistant Secretary of Commerce and Trade for Virginia’s then-Governor Mark R. Warner (D), and lead planner of Her Majesty Queen Elizabeth II and Prince Phillip’s royal visit to Virginia for then-Governor Tim Kaine (D). Ms. Howe highlighted her extensive career in operations and management during her opening statements to the Committee, noting that if confirmed, she will bring her personal motto of “go for the good” to her position at EPA. David Uhlmann is the current Director of the Environmental Policy and Law Program at the University of Michigan Law. Prior to academia, Mr. Uhlmann spent 17 years as a federal prosecutor, including seven years with the U.S. Department of Justice’s Environmental Crimes section. During his opening statement, Mr. Uhlmann stressed that his time in academia has strengthened his belief in promoting environmental advocacy, noting that he believes that those companies that display ethics, integrity, and environmental stewardship should not be at a competitive disadvantage to those that do not. Senator Shelley Moore Capito (R-WV), Ranking Member of the Committee, asked Ms. Howe how she would transition from the political sphere into governmental management, given President Biden’s initiative to bolster EPA staff. Ms. Howe reiterated her operations management background, noting that throughout her career in public service, she has managed large and complex operations and can think of no better way to serve the public than through the EPA. Senator Capito then asked Mr. Uhlmann about a paper he had written for the Obama Administration. The paper addressed the Clean Energy Standard and carbon taxing, but excluded carbon capture and nuclear energy. Senator Capito questioned how Mr. Uhlmann’s stance on the Clean Energy Standard would align with his EPA nominated role. Mr. Uhlmann responded that while he felt that we need to be seriously addressing climate change, it is the role of Congress to decide how. He stated that his role within EPA would be to help companies comply with any laws that Congress passes and any regulations promulgated by EPA, as well as to bring enforcement actions against companies that violate those laws. Senator Cynthia Lummis (R-WY) questioned Mr. Uhlmann about his stance on a recent series of White House Environmental Justice Advisory Council recommendations that stated that federal support for technologies such as carbon capture, utilization, and storage were not suitable for Environmental Justice (EJ) communities. Mr. Uhlmann responded that both EJ communities and rural communities have been left behind, and that if confirmed, he would work with states to ensure both communities had access to clean air and water. Senator Lummis and Senator Benjamin L. Cardin (D-MD) each probed Mr. Uhlmann about respective projects that their states were working on with EPA, and asked for a commitment from Mr. Uhlmann that those projects would not go to the wayside. Mr. Uhlmann responded that he believed strongly in a state and federal partnership and that he would work to strengthen that relationship. Closing the nominations hearing, Committee Chair Thomas Carper (D-DE) asked each nominee a series of questions, including his standard “what question were you not asked that you wish you had been?” Senator Carper posed three questions to Ms. Howe: what attributes of Governor Mark Warner and Governor Tim Kaine did you witness and learn during your time as a public servant; how would you plan on safely bringing the EPA workforce back into the office; and given EPA’s prior cybersecurity breaches, how would you lead EPA’s cybersecurity efforts? Ms. Howe reflected on her time serving each Governor and noted that Mark Warner had the ability to pay attention to detail while still maintaining an eye on the big picture. In her role as EPA Assistant Administrator for Mission Support, she would work to incorporate these lessons by building strong relationships regardless of political party, so that common ground can be found for the common good. From Tim Kaine, Ms. Howe observed that kindness is a strength, and that challenges should be approached with openness, kindness, and integrity. Ms. Howe expressed concern for the EPA workforce and the challenges they face in keeping themselves and their families safe during Covid. When considering bringing EPA staff back to the office, Ms. Howe stressed the importance of following the science and following Centers for Disease Control and Prevention (CDC) guidelines. In considering how to move forward, Ms. Howe stated she would use EPA as the resource that it is and consult with staff to understand what aspects of teleworking have been successful. She noted that people’s lives have changed, and reintegrating back to the office will take empathy, openness, and a willingness to listen to concerns. In her response to cybersecurity concerns, Ms. Howe stated that this is an issue that has been and will continue to be a top priority for Mission Support. If confirmed, she plans to work directly with the EPA’s Chief Information Officer (CIO) and Chief Operating Officer (COO) to identify and sharpen cybersecurity. She also noted that she has no reservations in speaking openly with Congress and to ask for the resources and tools that she needs to tighten EPA cybersecurity measures. The question Ms. Howe would have liked to be asked was “how do you feel about your nomination to the role of Assistant Administrator for Mission Support?” She feels excited. She is looking forward to recruiting new staff to EPA and feels that it is a vibrant and exciting place to work. Senator Carper’s closing questions to Mr. Uhlmann included: what in your extensive experience prosecuting environmental crimes and enforcement actions can you bring to this position in helping EPA identify and prevent violations before they occur; and what question were you not asked that you wish you had been? Mr. Uhlmann discussed his long history as a prosecutor working with the career staff of EPA in trials, as well as his collaborative work alongside EPA civil attorneys. Mr. Uhlmann emphasized his deep appreciation for the career staff at EPA, highlighting that unlike his predecessors, he is not new to this area and can “hit the ground running.” Overall, Mr. Uhlmann focused on the need for response. The most salient lesson he observed from his time as a prosecutor is that pollution has real consequences on the lives of Americans and their communities. Mr. Uhlmann would have liked to have been asked what his top priorities would be as Assistant Administrator for Enforcement and Compliance Assurance. He focused on the threat of climate change and the effects that environmental harms have on communities, stating that these concerns should be at the root of enforcement and compliance actions. He went on to address staffing issues within EPA enforcement and compliance regional offices, and the advocacy he would engage in to procure the necessary resources to strengthen those offices. Maintaining that we cannot regulate our way out of every environmental problem, Mr. Uhlmann focused on the importance of promoting ethics, integrity, and environmental stewardship within the business community to help solve these problems. Rounding out his list of priorities, Mr. Uhlmann stated that there is no room for politics in enforcement, rather it is about the law and the facts. Commentary The hearing proceeded with a jovial atmosphere and at times felt almost routine in nature. There were no real surprises or hard hitting questions posed to either nominee. Senator Mark Kelly (D-AZ) posed only one question to Mr. Uhlmann, centered on the niche issue of Clean Air Act (CAA) violations for modifying street vehicle emissions systems to convert them to racing vehicles. Senator Kelly expressed concern over how this statutory prohibition hampered the sport of street racing in Arizona. Mr. Uhlmann pivoted to his work on the VW emissions case and the environmental consequences of that scandal, but did not commit to a stance on Senator Kelly’s proposed amendments to the CAA. The line of questioning then diverted towards Senator Kelly’s wife, Gabby Gifford, and her love of street motorcycle racing. The hearing itself incorporated a decent amount of story-telling on behalf of the Committee members, adding to a sense of collegiality. Throughout the hearing, both nominees emanated passion for their possible future roles within EPA and focused on collaboration as a necessary element moving forward. By Lynn L. Bergeson and Carla N. Hutton |
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